Fraud (Trials without a Jury) Bill

My Lords, I hesitate to intervene in what appears to be a predominantly legal exchange. I support the Second Reading of the Bill and will vote against the wrecking amendment. I note the pledge to use the Parliament Act if necessary. The Bill deals with an issue that seems to generate considerable feeling and sometimes has been described as the thin end of the wedge as regards trial by jury. There is no trial by jury in a magistrates’ court and for summary cases the defendant does not have a right to opt to have the case heard instead in a higher court so that it can be before a jury. If a district judge is sitting in a magistrates’ court, the case is heard not by three people, but by one person who determines the verdict and, where applicable, the sentence, which could be a period of imprisonment. Trial by jury is not the norm throughout the criminal justice system. In the civil courts, where cases of potentially enormous significance can be heard, it is not a key part of the process at all. Even in the criminal justice system, cases can be heard, in exceptional circumstances, without a jury if a jury could be subject to intimidation. However, the Bill does not propose to hack away at the current rights of trial by jury. There are just under 30,000 contested jury trials a year and the Bill will reduce that number by a handful. The figure is unlikely to be more than 20 and probably just half a dozen. It would apply only to lengthy, complex and serious fraud cases, of which there were half a dozen lasting six months or longer in 2005, and only in cases where the prosecution, the trial judge and the Lord Chief Justice were satisfied it was necessary, in the interests of justice, judged against the strict criteria laid down. For the four years from 2002 to 2005,26 fraud trials lasted for more than six months, six of which lasted for more than a year. The need for new ways of trying complex fraud cases, often involving many defendants in inter-linking transactions and other acts, was highlighted in the reports by Lord Roskill in 1986 and Lord Justice Auld in 2001. Their argument did not extend to either other types of case or into a general proposition for a move away from jury trial. This Bill, in line with those reports, is also about a limited number of very specific, lengthy or complex fraud cases, which are likely to go on for many months, indeed up to a year or more. For the members of the jury that is an enormous period of time, and way beyond what can justifiably be expected of a citizen required to do his or her civic duty. It certainly raises questions about why cases need to go on for so long, and why we have a judicial system that allows, allegedly in the name of justice, for cases to extend over such a period of time. For a juror, it can mean a lengthy disruption of his or her personal life. For those in employment it can put at risk promotion prospects or even their job, levels of income, pay rises and bonuses, and the ability to keep up to date with developments in their field of work. In some jobs, if skills are not regularly used, it can make a return to work many months later even more difficult. Needless to say, not being around for many months does not exactly endear an employee to his or her employer. All these factors can also make it harder to end up with a jury that is as representative as the selection system is intended to produce. Those with careers to think about, those who have a less than sympathetic employer, and those with significant personal commitments are likely to use whatever channels they can to avoid sitting on cases lasting up to a year. Thus the principle of the randomness of selection of the jury is compromised in such cases. My noble and learned friend quoted Lord Justice Auld’s report in which, referring to fraud cases, he said that their burdensome length and increasing speciality and the complexity with which jurors had to cope put justice at risk and was a most compelling factor in favour of reform. Whether Lord Auld is right in inferring that jurors may have difficulty in coping I do not know, but I am sure he is right in referring to the burdensome length and its impact. That was an issue brought out in the report undertaken by the inspector following the Jubilee Line case even though it may not have met the intended criteria for trial without a jury since it was not expected to be as lengthy or as complex as it was. The requirement for oral explanation of documents which can run into thousands of pages in complex fraud trials is a factor in such trials lasting many months or even up to a year or more. This places a real burden on juries, since few people are in a position to give up their normal lives for so long. There is evidence that to get round this problem prosecutors split complex fraud trials into separate trials, drop the less serious charges against secondary defendants and reduce the number of charges before the court. None of these actions is in the interests of justice, since it means that the full alleged culpability of the defendants is not presented to the court. In the Blue Arrow case the trial judge had to sever the case into two trials to make it, "““manageable for the jury””." He said that, "““no jury should be asked to cope with what this jury has had to endure””." The Court of Appeal said that, "““there is a significant risk of a miscarriage of justice resulting from the volume and complexity of the evidence””." A judge sitting alone should be able to overcome these difficulties, hear a large number of charges, look at all the evidence and make sure that speeches and questions are not repetitive and are directed at the relevant issues and differences over facts. It may not result in the case being shorter but it should result in all the charges being put, all the defendants appearing before the court and the evidence in full being heard. Complex fraud cases almost by definition include issues of whether what was being alleged was, or was not, being done knowingly and with intent. If it was, it is more than likely that fairly elaborate steps were being made to cover tracks and to present it in another light. Defendants in complex fraud trials are not usually relatively unsophisticated folk, unlike many who appear in benefit fraud cases tried in the lower courts. Lengthy fraud trials, where juries have sat for many months before being asked to make decisions reflecting complex evidence, speeches and questioning relating to multiple defendants who they heard weeks and months earlier in the trial, would not be many people’s idea of how an effective criminal justice system should function. They certainly wouldnot regard it as so if a better way was available, in certain clearly defined circumstances, to deal with such cases. I do not believe that the public would regard the hearing of a small number of very lengthy and complex fraud cases before a single judge as an injustice or as an attack on jury trials; nor do all members of the legal profession share a lack of confidence in the appropriateness of a single judge and a non-jury trial in such cases. I believe that the public would support such a move, particularly if it ensured that the whole case was heard in one court and that all appropriate charges were laid, all appropriate defendants charged and all the evidence heard. That is justice, and that is what the public support and want. They do not want a system which, in respect of a limited number of lengthy and complex fraud cases, at times appears to be the sophisticated fraudster’s friend.